Legal Separation in South Carolina
Technically, there is no such thing in South Carolina as a "Legal Separation". Rather it is called an Order of Separation and Maintenance that is issued by the family court judge. Separation simply means that you and your spouse no longer live together. Separation may occur by mutual consent or by one of you leaving or being expelled from your home. You are not considered separated in South Carolina if you and your spouse continue to live in the same residence. Once you are living in separate residences, either spouse can file in the family court for an order that amounts to a legal separation.
CAN I STOP MY SPOUSE FROM ENTERING OUR HOME?
The short answer in no you cannot without a court order. Your spouse has a right to be on and in the property that you both own or rent unless a court decides otherwise. If you lock your spouse out, he or she may be able to take appropriate action to regain entry to the property.
WHAT IS THE ROLE OF A SOUTH CAROLINA LAWYER?
If you and your spouse are having marital problems, your lawyer can assist you in three areas. First, a South Carolina divorce attorney will advise you of your legal rights and duties. Second, he or she will help to bring about an agreeable settlement of the legal disputes which arise between you and your spouse as a result of your "legal separation" or divorce. Finally, your lawyer is your representative in enforcing your rights in a court of law or in defending you if your spouse files an action against you.
What Happens in South Carolina Since There is No Legal Separation
The recommended method is for the parties to enter into a marital settlement agreement and have it entered as a temporary or final order of separation and maintenance until such time as the divorce is finalized. Your attorney will assist you in negotiating an agreement that is fair to the parties. If both parties agree, the court will enter an order of "separation and maintenance" which has basically the same effect as a legal separation. If the parties cannot agree, most family courts now require mediation. If the parties cannot agree at mediation, then a trial will be required.
WHAT IS A MARITAL SETTLEMENT AGREEMENT?
After a husband and wife separate, especially if they intend to divorce, it is desirable for them to enter into a written agreement to provide for:
division of real estate and personal property;
support, if any, payable to the dependent spouse and children;
responsibility for debts and legal fees;
health and life insurance arrangements;
custody and visitation of children
Also included are many other items which set forth the mutual rights and duties of the two people. This marital settlement agreement is a contract and, once entered as an order of the court, is enforceable by the contempt powers of the South Carolina Family Court. Certain provisions in the agreement concerning child custody, visitation, spousal support and child support can later be modified by the court if circumstances change.
The family court nearly always approves the agreement of the parties if it is generally fair and the court is convinced that the agreement was entered into by both spouses with no fraud, mistake, or coercion. The court will review the financial affidavits attached to the agreement in order to determine the accuracy of child support figures and the fairness of the property distribution.
WHAT HAPPENS TO REAL ESTATE WE OWN?
Many married couples own their real property as joint with the right of survivorship. This form of joint ownership normally means that neither spouse can sell the property during the marriage without the consent of the other. Upon divorce, however, unless the parties have written agreement providing for the division of the property, the court has the power to divide the property on equitable principles. This means that the court will take into account many factors when arriving at a fair division, although that does not always mean the property will be divided equally.
The court takes into consideration both spouses' economic and non-economic contributions to property acquired during the marriage. If neither you and your spouse or the court divide the property, then the nature of the property automatically changes after divorce and you both become "tenants in common" with equal rights to the property.
WHAT IS MARITAL PROPERTY?
South Carolina divorce laws provides that all property acquired by either spouse during the marriage, with certain exceptions like gifts and inherited property, is marital property, regardless of in whose name the property is held. It should be noted that the increase in value during the marriage of gifts, inherited property, and premarital property which remain in one parties name, may also be considered marital property if the increase was due to the work of the spouse and not market conditions. Marital property, if not divided in the "legal separation" agreement, may be divided equitably by the court.
WHO OWNS THE HOUSEHOLD GOODS?
Household items, such as drapes, carpets, furniture and appliances are generally not titled in either spouse's name. Unless you can show a different intent, the law treats all such property as being jointly owned and used for the benefit of both spouses, regardless of who actually paid for it. As part of the divorce, the court will consider these things as marital property and distribute them accordingly.
WHAT ABOUT BANK ACCOUNTS?
No matter whose name is on the account, you are normally both owners of the funds. If one spouse draws all the money out of an account, he or she may have to account to the other for the money, no matter who originally put the funds into the account or if the account is titled in only one name as long as the funds are marital funds and not separate property. As part of the divorce, the court may consider the bank accounts as marital property and equitably divide the funds, regardless of whose names were on the accounts.
WHAT IF I DON"T WANT A DIVORCE?
If the divorce is on no-fault grounds, the only defenses are showing you have not lived apart for the required one year or that the marriage is not irretrievably broken and both parties agree that there is a chance of reconciliation.
In a fault divorce, your spouse must be "innocent and injured" to establish grounds. If you are able to prove that this is not the case, you may be able to prevent the divorce. You can also attempt to prove that the facts claimed by your spouse are false. There are certain other defenses that may apply in specific situations. You should discuss with your South Carolina family law attorney what courses of action might be available.
WHAT WILL BE IN THE FINAL COURT ORDER?
When the court issues a Decree of Divorce, the order may include other matters if they were raised in the proceeding by either spouse. These include disposition of marital property and other property interests; child custody and visitation; child support; alimony; and enforcement of agreements voluntarily entered into by the parties.
CAN THE COURT REQUIRE MEDIATION?
Yes, the court can order that the parties mediate their differences. In certain South Carolina family courts mediation is mandatory if there are contested issues in the divorce.
Legal Separation Temporary Hearing
As stated before, technically there is no such thing as a legal separation in South Carolina. However, once you have filed your divorce petition or a petition for a judicial separation, you can request a temporary hearing or possibly a final hearing for an order of separation and maintenance which essentially has the same effect as a legal separation. The Family Law Court will set a hearing to occur within days or weeks of the date of the request for the hearing. If a marital settlement agreement is not reached with your spouse concerning temporary matters before the scheduled hearing, it will be necessary for you to appear in court at that time. Your lawyer will give you a form entitled "Financial Information Statement" for use at that hearing, and will explain to you what your court appearance may be like.
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